The opinion of the court was delivered by: Wexler, District Judge.
Gregory Blouin petitions this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 1994 state court
conviction of manslaughter. For the reasons set forth below, the
petition is dismissed as time-barred.
I. Time Limitations For Filing a Habeas Petition
Prior to 1996, there was no clear and formal limit on the time
in which a state court prisoner could apply to a federal court
for a petition for habeas corpus. This changed with the passage
of the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"). Under AEDPA, a one year statute of limitations applies
to the filing of an application for a writ of habeas corpus.
28 U.S.C. § 2244(d)(1). The one year time period begins to run from
the latest of:
• the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
• the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, of the applicant was prevented from filing
by such State action;
• the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
• the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). AEDPA provides for a toll of the
one year period during certain circumstances. For example, the
one year period is tolled during the time when a prisoner's
application for state post-conviction relief is pending.
28 U.S.C. § 2244(d)(2).
A post-conviction motion is considered to be "pending" for the
purposes of AEDPA's toll, from the time the motion is first filed
until a final decision on the merits is rendered, including the
time during which the motion is pending on appeal. Duncan v.
Griener, 1999 WL 20890 *3 (S.D.N.Y. January 19, 1999); Geraci
v. Senkowski, 23 F. Supp.2d 246, 252 (E.D.N.Y. 1998).
The tolling provision of AEDPA does not allow the one year
period to run anew each time a post-conviction motion is ruled
upon. Instead, the statute merely excludes from the calculation
of the one year period any time during which post-conviction
relief is pending. Torres v. Miller, 1999 WL 714349 *4
(S.D.N.Y. August 27, 1999). Thus, the provision stops, but does
not reset, the clock from ticking on the time in which to file a
habeas petition. It cannot revive a time period that has already
expired. See Brooks v. Artuz, 1999 WL 138926 *2 (S.D.N.Y. March
Petitioner was convicted in state court on September 9, 1994.
He appealed his conviction to the Appellate Division of the
Supreme Court and that court affirmed the conviction on January
22, 1996. On June 25, 1996, Petitioner was denied leave by the
New York Court of Appeals to further directly appeal his
conviction. Petitioner's conviction became final, for purposes of
AEDPA, when the time in which he could seek leave to appeal to
the United States ...